Case Information
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ROBERT E. HEALEY THE HAYMOND LAW FIRM, P.C., ET AL.
(AC 38599) Prescott, Mullins and Bear, Js.
Argued January 31—officially released June 27, 2017 (Appeal from Superior Court, judicial district of Hartford, Elgo, J.) Leon M. Rosenblatt and Richard J. Padykula , for the appellant (named defendant).
Andrew L. Houlding , for the appellee (plaintiff). *3 Opinion
MULLINS, J. The defendant, The Haymond Law Firm, P.C., [1] appeals from the judgment of the trial court, ren- dered after a jury trial, awarding its former employee, the plaintiff, Robert E. Healey, damages for unpaid wages pursuant to General Statutes § 31-72. On appeal, the defendant claims that the court erred by charging the jury on the amended version of § 31-72 because the amendment took effect after this action had com- menced. Therefore, the defendant argues, the court was required to charge the jury on the repealed version of that statute that had been in effect at the time the alleged injuries occurred. The defendant also claims that the court’s instruction on the amended version of the statute was a clear, obvious, and indisputable error that warrants reversal under the plain error doctrine. [3]
We conclude that the defendant’s claim is unreview- able because it induced the alleged instructional impro- priety by affirmatively requesting that the court charge the jury on the amended version of § 31-72. We also conclude that plain error reversal is not warranted in this case. Accordingly, we affirm the judgment of the trial court.
The following facts, which are not in dispute for the purposes of this appeal, and procedural history are rele- vant to the defendant’s claim. The plaintiff worked for the defendant as a medical malpractice attorney for more than seventeen years. In 2011, the plaintiff informed John I. Haymond, the defendant’s principal, that he wished to retire from practicing law full time. Consequently, the defendant and the plaintiff agreed that the plaintiff would continue to work for the defen- dant through 2012 on a part-time basis.
In September, 2012, the defendant and the plaintiff reached another agreement that further reduced the plaintiff’s workload and modified the plaintiff’s com- pensation. In particular, the agreement provided that (1) the plaintiff would retain responsibility only for a small number of medical malpractice cases; (2) the defendant would pay the plaintiff 50 percent of the legal fees recovered in those cases; and (3) the defendant would pay the plaintiff 15 percent of any referral fees that the defendant received in cases that the plaintiff had referred to the law firm of Koskoff, Koskoff & Bieder, P.C. (Koskoff, Koskoff & Bieder).
In March, 2013, the plaintiff settled two medical mal- practice cases for which he had retained responsibility pursuant to the September, 2012 agreement. Subse- quently, the plaintiff requested that the defendant pay him 50 percent of the legal fees it received in those settlements. The defendant refused to pay the plaintiff 50 percent of the recovered legal fees and, instead, paid him only approximately 15 percent of the fees.
Around August, 2014, the plaintiff learned that one *4 of the cases that he had referred to Koskoff, Koskoff & Bieder had been settled and that the defendant received a referral fee from Koskoff, Koskoff & Bieder for that case. The defendant never tendered any part of that referral fee to the plaintiff.
Thereafter, the plaintiff brought the present action, seeking recovery of (1) his full 50 percent share of the legal fees recovered in the two medical malpractice cases that he had settled, and (2) 15 percent of the referral fee that the defendant received from the case settled by Koskoff, Koskoff & Bieder. Specifically, the plaintiff’s complaint sought recovery principally on the basis of a statutory claim for unpaid wages made pursu- ant to § 31-72 and a breach of contract claim.
Regarding the statutory claim for unpaid wages, the
governing statute, § 31-72, was amended while this
action was pending. On June 19, 2013, when this action
was initiated, the version of the statute that was in
effect at that time provided in relevant part: ‘‘When any
employer [unlawfully] fails to pay an employee wages
. . . such employee . . .
may
recover, in a civil action,
twice the full amount
of such wages . . . .’’ (Emphasis
added.) General Statutes (Rev. to 2013) § 31-72. Our
Supreme Court also had provided the following inter-
pretive gloss relating to double damages under that
version of § 31-72: ‘‘The statute provides for a
discre-
tionary
award of double damages . . . to employees
who are successful in actions against their employers
for wages due. . . . Although § 31-72 does not set forth
a standard by which to determine whether double dam-
ages should be awarded in particular cases, it is well
established . . . that it is appropriate for a plaintiff to
recover . . . double damages . . .
only when the trial
court has found that the defendant acted with bad faith,
arbitrariness or unreasonableness
.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Ravetto Triton Thalassic Technologies, Inc.
, 285
Conn. 716, 724,
In June, 2015, approximately two years after this action was commenced and four months before trial began, § 31-72 was amended by No. 15-86, § 2, of the 2015 Public Acts. The amended version took effect on October 1, 2015, several weeks before trial began. It provides in relevant part: ‘‘When any employer [unlaw- fully] fails to pay an employee wages . . such employee . . . shall recover, in a civil action, (1) twice the full amount of such wages . . or (2) if the *5 employer establishes that the employer had a good faith belief that the underpayment of wages was in compli- ance with law, the full amount of such wages . . . with costs and such reasonable attorney’s fees as may be allowed by the court. . . .’’ (Emphasis added.) General Statutes § 31-72.
On October 20, 2015, the plaintiff submitted a prelimi- nary request to charge, proposing that the court instruct the jury using the language in the amended version of § 31-72. After quoting the relevant part of the amended version of § 31-72 in his proposed instructions, the plain- tiff requested the following specific instructions: (1) ‘‘If you do find in favor of the plaintiff—that is, that the defendant unlawfully withheld his pay—you must then determine whether the [defendant] had a ‘good faith belief that the underpayment of wages was in compli- ance with law.’ It is the defendant’s burden to prove to you that the defendant had such a good faith belief’’; and (2) ‘‘If you find that the defendant failed to prove that it had such a good faith belief , then you must award the plaintiff twice the amount of unpaid wages . . . [and the plaintiff] is entitled to collect his attor- ney’s fees.’’ (Emphasis added.)
On October 26, 2015, the plaintiff filed a memoran- dum of law supplementing his preliminary request to charge. In that memorandum, the plaintiff argued that the court should conclude that the amended version of § 31-72 applied retroactively and, therefore, use that version in its instructions. The defendant did not file any response to the plaintiff’s preliminary request to charge and accompanying memorandum of law.
On October 27, 2015, the defendant filed its own preliminary request to charge, which also quoted the amended version of § 31-72. In particular, the defendant asked the court to give the following instruction: ‘‘I will summarize the law for you. . . . [Section] 31-72 pro- vides criteria for an employee to collect unpaid wages. Section 31-72 states, in pertinent part [that] . . . [w]hen any employer [unlawfully] fails to pay an employee wages . . such employee . . shall recover, in a civil action, (1) twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compli- ance with law, the full amount of such wages or com- pensation, with costs and such reasonable attorney’s fees as may be allowed by the court. ’’ (Emphasis altered; internal quotation marks omitted.)
On October 28, 2015, the second day of evidence, the plaintiff filed two additional requests. The first was a request for jury interrogatories. That request proposed interrogatories tracking the language of the amended version of § 31-72, including an interrogatory asking the jury if it ‘‘[found] that the defendant failed to prove that *6 it acted in good faith in failing to pay the plaintiff in full the compensation he had earned.’’ (Emphasis added.) Although the defendant did not file a written objection to the proposed interrogatories, the defendant’s counsel subsequently made the following oral objection to the aforementioned interrogatory: ‘‘[It is] unjustifiably prej- udicial. I would suggest that it say, Do you find that the defendant had a good faith belief that it paid wages in compliance with the law, yes or no?’’ The second request, filed by the plaintiff on October 28, 2015, was a revised request to charge. That request, like the plain- tiff’s preliminary request to charge, proposed that the court instruct the jury according to the amended version of § 31-72. The defendant did not file a written objection to the revised request to charge.
Also on October 28, 2015, the court heard argument from the parties regarding the proposed jury instruc- tions. The plaintiff’s counsel began argument by stating: ‘‘[T]he defendant has agreed that the latest version of the § 31-72 statute, as amended effective October 1, 2015, is the statute that is in effect now and we don’t have to be concerned about the question of retroactiv- ity.’’ It appears that the plaintiff’s counsel concluded that the defendant had ‘‘agreed’’ that the amended ver- sion controlled because the defendant had quoted ver- batim that version of the statute in its own request to charge. Thus, relying on the amended statute, the plaintiff’s counsel requested the court to instruct the jury ‘‘that it’s the employer’s burden to prove that it acted in good faith in failing to pay wages . .’’ (Emphasis added.)
The defendant’s counsel did not object to that requested instruction. Rather, in responding to the argu- ment by the plaintiff’s counsel, the defendant’s counsel stated that ‘‘[t]he plaintiff’s attorney is correct that . . . the statute has been amended going forward. What [the plaintiff’s counsel] has not done . . . though, is articu- late that the court still maintains the discretion, under the new wording of the [amended] statute, whether or not to allow attorney’s fees if there is a . . . good faith belief that wages were paid.’’ That is, the defendant’s counsel apparently was contending that the amended version is ambiguous as to whether an award of attor- ney’s fees for an employer’s withholding of wages is mandatory or discretionary. In so arguing, the defen- dant was challenging the plaintiff’s assertion that the amended version requires an award of attorney’s fees where an employer unlawfully fails to pay an employee wages, not his assertion that the amended version applied retroactively and that the employer now was required to prove good faith.
Moreover, later in that hearing, the following exchange occurred between the defendant’s counsel and the court regarding the interpretation of the amended version of § 31-72:
‘‘The Court: The burden of [proving] good faith, right. That is the defendant’s burden. Are we clear about that?’’
‘‘[The Defendant’s Counsel]: We are clear about that ‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: The language, I will con- cede . . . is very clear with respect . . . to that .’’ (Emphasis added.)
After the conclusion of evidence on October 28, 2015, the court reviewed the substance of its anticipated charge with counsel. In particular, the court asked the defendant’s counsel the following question: ‘‘[W]ith respect to the wages, I am going to charge what’s in the statute. Is there any objection to that?’’ The defendant’s counsel replied, ‘‘No.’’
On October 29, 2015, the court charged the jury. The charge contained the following relevant provisions. First, the court recited the amended version of § 31-72. Second, the court instructed that ‘‘[i]f you do find in favor of the plaintiff [with respect to the claim made under § 31-72], that is, that the defendant unlawfully withheld his pay, you must then determine whether the [defendant] had a good faith belief that the under- payment of wages was in compliance with law. Please be clear that with respect to this element and this ele- ment alone, the burden shifts to the defendant to prove to you that the defendant had such a good faith belief . . . If you find that the defendant had such a good faith belief, then the defendant is liable to the plaintiff only for the full amount of the unpaid wages. If you find that the defendant failed to prove that it had such a good faith belief , then you must award plaintiff twice the amount of unpaid wages. In addition, if the plaintiff prevails on this count, then he is entitled to collect his attorney’s fees, although you will not make any determination with respect to attorney’s fees. The amount of attorney’s fees shall be determined by the court.’’ (Emphasis added.)
When the court asked if counsel had any exceptions to the charge, the defendant’s counsel replied: ‘‘With respect to the request to charge, we would reclaim our objection to the charge that the General Assembly intended that attorney’s fees are automatically recover- able under § 31-72 if a jury finds that a claim for unpaid wages has been sustained. Also, we would object to the inclusion in the charge of General Statutes § 31-71f [5] to the specific claims in this case because the authority has applied that subsection of the law in cases that are significantly different than claimed here.’’ (Footnote added.) The defendant did not raise any other objec- tions to the charge.
At no point during the trial court proceedings did the defendant ever argue that the court should instruct on *8 the repealed version of § 31-72, which placed the burden of proving bad faith on the employee, rather than that statute’s amended version. Furthermore, the defendant conceded that the amended version of § 31-72 places the burden of proving good faith on the employer.
The jury returned a verdict for the plaintiff on all five counts asserted in his complaint and awarded him $262,930 in damages. In addition, the court awarded the plaintiff $114,742 in attorney’s fees and interest, resulting in a total judgment for the plaintiff in the amount of $377,672. This appeal followed.
On appeal, the defendant claims that the trial court’s jury instructions were improper because they retroac- tively applied the amended version of § 31-72 that was enacted after this action was commenced. Specifically, the defendant argues that the court improperly instructed the jury that, pursuant to the amended ver- sion of § 31-72, it must award the plaintiff double dam- ages for unlawfully withheld wages unless the defendant establishes that it withheld the wages in good faith. According to the defendant, the court should have instructed the jury on the repealed version of § 31-72, pursuant to which the plaintiff may recover double damages if he proves that the defendant withheld the wages in bad faith. The plaintiff responds that the defen- dant failed to preserve this claim for appeal and also that it ‘‘induced by [its] own actions the alleged instructional defect that it now challenges.’’ (Internal quotation marks omitted.) We agree with the plaintiff that the defendant induced the alleged instructional impropriety and, thus, decline to review the defendant’s claim.
We begin with the relevant legal principles. ‘‘This
court routinely has held that it will not afford review
of
claims
of error when they have been induced. [T]he
term induced error, or invited error, has been defined
as [a]n error that a party cannot complain of on appeal
because the party, through conduct, encouraged or
prompted the trial court to make the erroneous ruling.
. . . It is well established that a party who induces an
error cannot be heard to later complain about that error.
. . . This principle bars appellate review of induced
nonconstitutional and induced constitutional error.
. . . The invited error doctrine rests on principles of
fairness, both to the trial court and to the opposing
party.’’ (Emphasis added; footnote omitted; internal
quotation marks omitted.)
Gorelick Montanaro
, 119
Conn. App. 785, 796–97,
‘‘[Our appellate courts] ha[ve] found [claims of]
induced error undeserving of appellate review in the
context of a jury instruction claim when the [appealing
party] has affirmatively requested the challenged jury
instruction . . . .’’ (Internal quotation marks omitted.)
State
v.
Lindsay
,
Our review of the record reveals that the defendant induced the alleged instructional impropriety by affirm- atively requesting the language it now challenges. The defendant filed a written request to charge that cited and quoted the amended version of § 31-72. In particu- lar, the request quoted the provision of the amended version that imposes liability for double damages on an employer who fails to prove that it withheld wages in good faith. Specifically, the defendant requested the following instruction: ‘‘When any employer [unlawfully] fails to pay an employee wages . . . such employee . . . shall recover, in a civil action, (1) twice the full amount of such wages . . . or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was [lawful], the full amount of such wages or compensation . .’’ (Emphasis altered; internal quotation marks omitted.)
In accordance with the defendant’s written request, the court instructed the jury on the amended version of § 31-72. It charged the jury, in relevant part: ‘‘If you find that the defendant failed to prove that it had . . . a good faith belief [in withholding the plaintiff’s wages], then you must award the plaintiff twice the amount of unpaid wages.’’ (Emphasis added.) Thus, the defendant received an instruction consistent with the language that it had requested. Accordingly, we decline to review the defendant’s claim of instructional impropriety because the defendant induced the alleged error of which it now complains.
The defendant also seeks reversal pursuant to the plain error doctrine. Specifically, it argues that the trial court’s alleged error in determining that the amended version of § 31-72 applied retroactively was plain error. The plaintiff responds that ‘‘[p]lain error review is not appropriate in this case’’ because the defendant induced the error of which it now complains. He further argues that if we reach the merits of the defendant’s plain error *10 claim, the trial court did not err in retroactively applying the amended version of § 31-72. In particular, the plain- tiff argues that although there is no authority addressing whether the amended version of § 31-72 applies retroac- tively, retroactive application is consistent with the gen- eral legal principles governing the retroactive applicability of statutes. We conclude that, to the extent that the plain error doctrine applies to claims of induced error, the defendant’s alleged instructional impropriety does not rise to the level of plain error because it has failed to demonstrate that such error resulted in mani- fest injustice.
We first review the relevant legal principles governing
the plain error doctrine. Notwithstanding the apparent
uncertainty regarding whether this court can evaluate
claims of induced error under the plain error doctrine,
this court recently considered whether a claim of
induced instructional error constituted reversible plain
error. See
State Schuler
,
The following principles guide our application of the plain error doctrine to the defendant’s claim. ‘‘[T]he plain error doctrine . . . is not . . . a rule of review- ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . .
‘‘[Our Supreme Court] recently clarified the [two-
pronged] framework under which we review claims of
plain error. [Under the] [f]irst [prong], we must deter-
mine whether the trial court in fact committed an error
and, if it did, whether that error was indeed plain in
the sense that it is patent [or] readily discernable on
the face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable.
. [T]his
inquiry entails a relatively high standard, under which
it is not enough for the defendant simply to demonstrate
that his position is correct. Rather, the party seeking
*11
plain error review must demonstrate that the claimed
impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal.’’
(Internal quotation marks omitted.)
State
v.
Darryl W.
,
‘‘[U]nder the second prong of the analysis we must
determine whether the consequences of the error are
so grievous as to be fundamentally unfair or manifestly
unjust.
.
.
. Only if
both prongs
of the analysis are
satisfied can the appealing party obtain relief.’’ (Empha-
sis added; internal quotation marks omitted.)
In re
Jah’za G.
,
After reviewing the record, we reject the defendant’s
request to reverse the trial court’s judgment pursuant
to the plain error doctrine. Even if we assume, without
deciding, that the court’s retroactive application of the
amended statute was an error satisfying the first prong
of the plain error doctrine, we conclude that such error
fails to satisfy the second plain error prong because it
did not result in manifest injustice. See, e.g.,
State
v.
Sanchez
,
Turning then to the second prong, in ‘‘address[ing]
. . . claim[s] of plain error despite a finding of waiver
or induced error . . . [our Supreme Court] has relied
in part on the defendant’s action as a basis for conclud-
ing that the defendant had not demonstrated the mani-
fest injustice or prejudice required to prevail under the
plain error doctrine.’’
State Darryl W.
, supra, 303
Conn. 372 n.17; see also
Alston
,
Indeed, in a case in which we applied the plain error
*12
doctrine to a claim of induced error, this court recently
opined: ‘‘Regardless of whether the [alleged impropriety
satisfies the first plain error prong], no manifest injus-
tice results from our refusal to entertain an argument
fashioned anew for appellate purposes, particularly
where the freshly minted argument contradicts the posi-
tion that the plaintiff advanced in the trial court.’’
Gladstein
v.
Goldfield
, supra,
As previously set forth in considerable detail, the alleged instructional error was induced by the defen- dant’s submission of a request to charge that quoted and relied on the amended version of § 31-72. Further- more, the record reveals that on several occasions throughout the trial, the defendant acquiesced to the court instructing the jury on the amended version. In light of the extent to which the defendant’s own actions contributed to the claimed error, we conclude that it has failed to demonstrate that the consequences of the claimed error were manifestly unjust.
Accordingly, we decline to afford the defendant relief under the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
[1]
John I. Haymond also was named as a defendant in this action but the
plaintiff withdrew the claims against Haymond in his individual capacity
prior to trial. Accordingly, we refer to The Haymond Law Firm, P.C., as the
defendant throughout this opinion.
of contract, invasion of privacy, money withheld and interest pursuant to
[2]
The plaintiff also sought recovery on four other claims alleging breach
General Statutes § 37-3a, and violations of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq. The jury found for the
plaintiff on all of those claims, and the defendant has not challenged the
judgment with respect to those claims in this appeal. The defendant’s failure
to challenge the judgment with respect to those claims does not implicate
mootness because those claims are not independent bases supporting the
jury’s award of double damages.
[3]
We note that the defendant’s invocation of the plain error doctrine occurs
only in a footnote in its brief. We previously have indicated that this is not
the preferred method by which a party should present claims to this court.
See, e.g.,
State Reddick
,
that ‘‘[i]n making [its] determination of whether all wages were paid to the
plaintiff, [it] . . . take into account the provisions of [§] 31-71f.’’
General Statutes § 31-71f requires an employer to ‘‘(1) [a]dvise [its] employ-
ees in writing, at the time of hiring, of the rate of remuneration, hours of
employment and wage payment schedules, and (2) make available to [its]
employees, either in writing or through a posted notice maintained in a
place accessible to [its] employees, any employment practices and policies
or change therein with regard to wages, vacation pay, sick leave, health and
welfare benefits and comparable matters.’’ An employer’s failure to comply
with the requirements of § 31-71f is actionable under § 31-72. See General
Statutes § 31-72 (‘‘[w]hen any employer fails to pay an employee wages in
accordance with the provisions of sections 31-71a to 31-71i, inclusive . . .
such employee . . . shall recover, in a civil action, (1) twice the full amount
of such wages, with costs and such reasonable attorney’s fees as may be
*13
allowed by the court, or (2) if the employer establishes that the employer
had a good faith belief that the underpayment of wages was in compliance
with law, the full amount of such wages or compensation, with costs and
such reasonable attorney’s fees as may be allowed by the court’’).
[6]
The term ‘‘induced error’’ apparently has become shorthand for the
doctrine pursuant to which we decline to review a party’s
claim
of error
if the party ‘‘induced the action of the [trial] court from which she now
complains.’’
Gladstein
v.
Goldfield
,